An affidavit of heirship can help avoid the probate process for small estates, but approval is not guaranteed without thorough compliance with state laws and proper documentation. To ensure success, heirs should provide accurate details, seek legal assistance, and consider professional help from probate genealogists to substantiate claims and avoid delays or dismissals.
A small estate left without a will is not expected to go through the probate process since state laws allow for the filing of an affidavit of heirship and approval should be expected within days or weeks.
However, that is not always the case, as experience has taught probate attorneys and courts of the dangers of negligence even when the estate looks simple.
Most of the affidavit dismissals and countercharges that I have learned about have been due to noncompliance with the sometimes tricky state laws and failure to substantiate relationships between the decedent and the purported heirs.
If you think you need to file an affidavit of heirship but feel lost, we’ve covered everything you may need to know.
What is an Affidavit of Heirship?
An affidavit of heirship is a legal tool used to update the ownership of a property if it falls within the small estate limits set by the state. Also called a pedigree affidavit or declaration, this tool is only used in the absence of a will and estate claims.
In this case, heirs only need to accurately fill in several forms and record them with the county clerk. Alabama sets the value limit at $25,000, California at $184,000, Iowa at $200,000, and Arizona at $100,000, just to mention but a few.
If the property’s value falls under these set limits in your state, filing an affidavit of heirship would be the best option. However, it does not guarantee approval.
Filing an affidavit is like taking a written oath. You simply enter truthful information, sign and attach witness statements, family trees, and original copies to validate your claims.
What Does An Affidavit of Heirship Entail?
All the county clerk wants is proof that you conducted due diligence and executed your matter persuasively. The main information you have to be careful with includes the decedent’s personal details, application of state law, confirmation of intestacy status, description of the property in question, and agreement with other heirs and witnesses.
Before you even attempt to retrieve that blank form, ensure your situation ticks all these boxes;
- The decedent dies intestate.
- You identify as an heir at law.
- You claim heirship and want to avoid the probate process.
- All heirs have agreed on the case.
- A disinterested third party can verify your heirship claim.
I strongly advise heirs to seek professional assistance from attorneys by the time they reach this point.
What Information Is Needed In An Affidavit Of Heirship?
A complete affidavit must have the following information indicated accurately;
- The decedent’s name, address, date of death, and marital status throughout their life.
- Confirmation that the decedent died intestate.
- The Claim of heirship based on the state intestacy laws.
- Heirs at laws and their personal information.
- Types of properties in question that qualify for this endeavor and heirs’ claim on them.
- Agreement between heirs on property distribution.
- Third-party verification of your right to inherit.
With this information entered into the form, states require you to sign it in the presence of a notary and file it with the county clerk. It’s worth noting that requirements for a compliant affidavit vary with states, especially on matters of notary, witnesses, and eligible property.
Will My Affidavit Be Approved?
For the affidavit of heirship to succeed, you clearly need to master these six elements set in every state;
- Witness Requirement: Study the requirement for third-party disinterested witnesses including the specifics about the duration they must have known the decedent and family.
- Eligible Property: Confirm that the property in question qualifies for affidavit of heirship under your state intestacy codes. What are the requisite value caps and the ownership status that qualify?
- Debt Claims: States require properties subject to a declaration to be free from debts, fines, and claims. Therefore, review the threshold set by the state probate codes and work with a financial advisor to streamline financial commitments and statements.
- Notarization: Most states require you to sign the affidavit in the presence of a notary officer.
- Where to File: Ensure you file the declaration with the correct authority or platform in your state. Find out if filing is done entirely online or physically at the county clerk’s office.
- Special State Requirement: Note other records or documents to attach to the affidavit, such as a comprehensive genealogical report and certified copies of birth, marriage, and death certificates.
With professional legal assistance, this part shouldn’t be a hassle, especially if you work with probate professionals like legal advisors, and probate genealogists. The latter provides a detailed genealogical report backed by original documents like birth certificates, death certificates, marriage certificates, and DNA if necessary.
Dedicating your time to prove beyond any reasonable doubt that the named beneficiaries are indeed the rightful heirs can have your affidavit approved within days.
In emphasizing the need to provide tangible evidence, Professor Peter Clarkson, a veteran in inheritance and probate matters, cautions that,
“a scant affidavit that seems hurried just to facilitate a sale of property and change of ownership should be a concern for the courts, especially in the modern family structures where an heir may emerge from nowhere and turn everything upside down.”
The Bottom Line
An affidavit of heirship might help bypass the probate process, but incorrect or unsubstantiated details may have it delayed or dismissed. While attorneys understand the state-specific workarounds, they need the intervention of a probate genealogist to create accurate family trees, retrieve crucial supporting documents, and compile a report that interprets familial lineage.
Sure, courts will approve affidavits for simple assets and family structures where all heirs agree, but they still pay keen attention to the heirs’ list to ensure state laws are followed and due diligence is conducted.
So, if you want to claim heirship to a small estate in your state, consider hiring an attorney and filing an affidavit that strictly follows the set rules and is rich in facts and reliable evidence.